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Category: Business Law
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Experience:  I have 30 years as a business lawyer in Texas
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Filing a motion to dismiss Pro se on my LLC behalf. We are a

Resolved Question:

Filing a motion to dismiss Pro se on my LLC behalf. We are a Florida LLC and we are Located in Florida. We have been sued in Allen County Indiana. Need advice.
Submitted: 1 year ago.
Category: Business Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. Ray here to help you today.

You would need an Indiana lawyer to file a special appearance.At a special appearance you argue the court has no jurisdiction over you as an out of state LLC.An LLC cannot appear except through a lawyer.You have great facts to have a dismissal here on this basis.

Expert:  RayAnswers replied 1 year ago.

Rule 12.Defenses and objections -- When and how presented -- By pleading or motion --Motion for judgment on the pleadings

(A) When presented. The timeallowed for the presentation of defenses and objections in a motion orresponsive pleading shall be computed pursuant to the provisions of Rule 6(C).

(B) How presented. Every defense,in law or fact, to a claim for relief in any pleading, whether a claim,counterclaim, cross-claim, or third-party claim, shall be asserted in theresponsive pleading thereto if one is required; except that at the option ofthe pleader, the following defenses may be made by motion:

(1) Lack of jurisdiction over the subject matter,

(2) Lack of jurisdiction over the person,

(3) Incorrect venue under Trial Rule 75, or any statutoryprovision. The disposition of this motion shall be consistent with Trial Rule75,

(4) Insufficiency of process;

(5) Insufficiency of service of process;

(6) Failure to state a claim upon which relief can begranted, which shall include failure to name the real party in interest under Rule17;

(7) Failure to join a party needed for just adjudicationunder Rule 19;

(8) The same action pending in another state court of thisstate.

A motion making any of these defensesshall be made before pleading if a further pleading is permitted or withintwenty [20] days after service of the prior pleading if none is required. If apleading sets forth a claim for relief to which the adverse party is notrequired to serve a responsive pleading, any of the defenses in section (B)(2),(3), (4), (5) or (8) is waived to the extent constitutionally permissibleunless made in a motion within twenty [20] days after service of the priorpleading. No defense or objection is waived by being joined with one or moreother defenses or objections in a responsive pleading or motion.

When a motion to dismiss is sustainedfor failure to state a claim under subdivision (B)(6) of this rule the pleadingmay be amended once as of right pursuant to Rule 15(A) within ten [10] daysafter service of notice of the court’s order sustaining the motion andthereafter with permission of the court pursuant to such rule.

If, on a motion, asserting the defensenumber (6), to dismiss for failure of the pleading to state a claim upon whichrelief can be granted, matters outside the pleading are presented to and notexcluded by the court, the motion shall be treated as one for summary judgmentand disposed of as provided in Rule 56. In such case, all parties shall begiven reasonable opportunity to present all material made pertinent to such amotion by Rule 56.

(C) Motion for judgment on the pleadings. Afterthe pleadings are closed but within such time as not to delay the trial, anyparty may move for judgment on the pleadings. If, on a motion for judgment onthe pleadings, matters outside the pleadings are presented to and not excludedby the court, the motion shall be treated as one for summary judgment anddisposed of as provided in Rule 56, and all parties shall be given reasonableopportunity to present all material made pertinent to such a motion by Rule 56.

(D) Preliminary determination.Whether made in a pleading or by motion, the defenses specifically enumerated(1) to (8) in subdivision (B) of this rule, and the motion for judgment on thepleadings mentioned in subdivision (C) of this rule shall, upon application ofany party or by order of court, be determined before trial unless substantialjustice requires the court to defer hearing until trial.

(E) Motion for more definite statement.If a pleading to which a responsive pleading is permitted is so vague orambiguous that a party cannot reasonably be required to frame a responsivepleading, he may move for a more definite statement before interposing hisresponsive pleading. The motion shall point out the defects complained of andthe details desired. If the motion is granted and the order of the court is notobeyed within twenty [20] days after notice of the order or within such othertime as the court may fix, the court may strike the pleading to which themotion was directed or make such order as it deems just.

(F) Motion to strike. Upon motionmade by a party before responding to a pleading, or, if no responsive pleadingis permitted by these rules, upon motion made by a party within twenty [20]days after the service of the pleading upon him or at any time upon the court’sown initiative, the court may order stricken from any pleading any insufficientclaim or defense or any redundant, immaterial, impertinent, or scandalousmatter.

(G) Consolidation of defenses in motion.A party who makes a motion under this rule may join with it any other motionsherein provided for and then available to him. If a party makes a motion underthis rule but omits therefrom any defense or objection then available to himwhich this rule permits to be raised by motion, he shall not thereafter make amotion based on the defense or objection so omitted. He may, however, make suchmotions as are allowed under subdivision (H)(2) of this rule.

(H) Waiver or preservation of certaindefenses.

(1) A defense of lack of jurisdiction over the person,improper venue, insufficiency of process, insufficiency of service of process,or the same action pending in another state court of this state is waived tothe extent constitutionally permissible:

(a) if omitted from a motion in the circumstances describedin subdivision (G),

(b) if it is neither made by motion under this rule norincluded in a responsive pleading or an amendment thereof permitted by Rule 15(A)to be made as a matter of course.

(2) A defense of failure to state a claim upon which reliefcan be granted, a defense of failure to join an indispensable party under Rule19(B), and an objection of failure to state a legal defense to a claim may bemade in any pleading permitted or ordered under Rule 7(A) or by motion forjudgment on the pleadings, or at the trial on the merits.

The lawyer would respond claiming that the court has no jurisdiction here and seeking to dismiss the LLC as a party.

Expert:  RayAnswers replied 1 year ago.


Allen County Bar Association LRS
Fort Wayne, IN

Phone:(###) ###-####br />Counties Served: Allen

Evansville Bar Association LRS
Evansville, IN

Phone:(###) ###-####br />Counties Served: Vanderburgh, Posey, Warrick

Indianapolis Bar Association LRS
Indianapolis, IN

Phone:(###) ###-####br />Counties Served: Marion, Hamilton, Hancock, Johnson, Hendricks and Boone

Lake County Bar Association
Crown Point, IN

Phone:(###) ###-####br />Counties Served: Lake, Porter

St Joseph County Bar Association LRS
South Bend, IN

Phone:(###) ###-####br />Counties Served: St. Joseph, Elkhart, La Porte, Marshall

Expert:  RayAnswers replied 1 year ago.

I gave you lawyer referral here to seek to challenge the suit and the LLC as a party.

Customer: replied 1 year ago.
Thank you Ray. I wanted to file a motion to dismiss by mail pro se on behalf of my LLC for lack of jurisdiction. This is possible in Florida but i wanted to make sure I can do it in Indiana. Thanks.
Expert:  RayAnswers replied 1 year ago.

The court would require you to have a lawyer here, corporations cannot have pro se representation.You will need a lawyer and lawyer would have to appear in person.Lawyer can file it by mail but this would be set for hearing.

Thanks again.